Though DNA Report Can Be Considered While Adjudicating Bail, Prosecution Can Contest Its Accuracy In Trial: J&K High Court

Granting bail to the petitioner, whose DNA test ruled him out as the biological father of the child allegedly born out of sexual assault a bench of Justice Mohammad Yousuf Wani acknowledged that the DNA report could still be scrutinized at a later stage in the proceedings.

Citing Mukesh and Anr. vs. State for NCT of Delhi and Ors. AIR2017 to accentuate the relevancy of DNA evidence the court stated,

“… The DNA Analysis being accurate as a technique outcome of recent scientific development. The Apex Court in the said case has, inter alia, held at para-87 of the Judgment that DNA evidence is now a predominant forensic technique for identifying criminals when biological issues are left at the scene of crime”

Background:

The case originated from an FIR filed at Police Station Katra under Sections 376 (rape) and 506 of the Indian Penal Code (IPC), and Section 3/4 of the Protection of Children from Sexual Offences (POCSO) Act.

The prosecutrix, a minor orphan, alleged that the petitioner, Pawan Kumar, sexually assaulted her over a prolonged period, which led to her pregnancy and the birth of a child. Kumar, however, claimed that he had been falsely implicated by the prosecutrix's step-grandfather, who shifted the blame onto him.

Seeking bail the petitioner argued that the DNA report, which exonerated him as the biological father, was conclusive evidence of his innocence. His counsel also highlighted that the prosecution's case was motivated by malice and the influence of the prosecutrix's step-grandfather.

The petitioner also relied on a Supreme Court ruling that granted bail to an accused based on DNA evidence that cleared him of paternity in a similar case.

The prosecution, however, contested the bail on the grounds that DNA evidence alone was insufficient to rule out the allegations of rape. They contended that the victim's statements under Sections 161 and 164-A CrPC, coupled with other medical and circumstantial evidence, were strong enough to warrant continued detention.

The prosecution also called for the re-examination of the DNA report, suggesting possible procedural errors and emphasizing that the trial would reveal more facts.

Court's Observations:

In a detailed examination of the case, Justice Wani emphasized the importance of DNA evidence in sexual assault cases, particularly after the incorporation of Section 53-A of the CrPC in 2006, which mandates DNA testing in rape cases. He noted, "A DNA test has to be lent credibility, especially after the incorporation of Section 53-A in the Code... Prior to 2006, the prosecution could have still resorted to this procedure of getting DNA tests for making its case foolproof."

Commenting on the mandate of DNA report at the Bail Stage Justice Wani acknowledged that the DNA report, which ruled out the petitioner as the biological father, was an important factor but not the sole determinant. He reiterated that the "prosecution and the complainant have the right under law to lead evidence as against the accuracy of the DNA Analysis report during trial of the case."

However, at the bail stage, before recording evidence, the court is allowed to consider such reports as part of its assessment, the court underscored.

Recognising the prosecution's argument that a DNA test, while significant, is not always 100% accurate and could be contested at trial the court held that “the DNA report could be scrutinized further during the trial, especially in light of other circumstantial evidence and the testimony of witnesses.” It further underscored that the trial court would retain the discretion to examine the doctors who conducted the test to ensure its reliability.

Reflecting on the broader societal impact of sexual crimes, the court observed,

"A little bit reasonable care and precaution in aid of law is sure to prevent an unfortunate incident of exploitation and save the honor and reputation of a child. The long penal provisions containing Proviso upon Proviso cannot repair and restore the loss in terms of honor and reputation."

It emphasized the vulnerability of the prosecutrix, an orphan, who had lived in the petitioner's home since her parents' death, adding that the petitioner had an opportunity to commit the alleged crime.

Criticising the failure of the authorities under the Juvenile Justice (Care and Protection of Children) Act, 2015, to protect the prosecutrix and her siblings Justice Wani remarked, “Even the authorities under the Juvenile Justice Act fail to act in respect of the said children... Guilty are liable for penalty under Section 34 of the Act for non-reporting.”

He directed the concerned Child Welfare Committees to verify the current situation of the prosecutrix and ensure appropriate measures for her rehabilitation and reintegration.

Making a powerful observation on the long-term impact of sexual offenses, the court stated, "Society looks with great apathy and hatred at an unchaste girl, and it is immaterial whether she becomes so by a voluntary act or under force or compulsion." and stressed that incidents of sexual violence often go unreported due to fear of social stigma, especially in conservative rural communities.

Based on the DNA analysis report and the broader context of the case, the court granted bail to the petitioner, subject to stringent conditions. The court however stressed that the trial would proceed without prejudice to the findings of the DNA report, and the prosecution could challenge its accuracy during the trial.

Case Title: Pawan Kumar Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 275

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